Bedard v. City of Los Angeles ( 2024 )

Filed 10/31/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JEANNINE BEDARD, B331062
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCP03008)
v.
CITY OF LOS ANGELES et. al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Affirmed.
Gregory G. Yacoubian for Plaintiff and Appellant.
Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief
Deputy City Attorney, Scott Marcus, Chief Assistant City
Attorney, Shaun Dabby Jacobs and Blithe S. Bock, Assistant City
Attorneys for Defendant and Respondent City of Los Angeles.
_________________________
Because plaintiff Jeannine Bedard refused to comply with
the City of Los Angeles’s (the City) COVID-19 vaccination
mandate and sign a “Notice of Mandatory COVID-19 Vaccination
Policy Requirements” (the Notice) enforcing the mandate, the
Chief of Police sought to terminate her employment as a Los
Angeles Police Department (LAPD) officer. The LAPD Board of
Rights (the Board) reviewed the Chief’s proposed discipline,
found Bedard guilty of failing to comply with conditions of
employment, and upheld the decision to discharge Bedard. The
Board also found the City failed to provide Bedard sufficient time
to respond to the charges in violation of Skelly v. State Personnel
Board (1975) 15 Cal.3d 194 (Skelly)1 and awarded her back pay.
However, the City did not subsequently pay Bedard the back pay.
Bedard filed a petition for writ of mandate in the trial
court, arguing the disciplinary action was procedurally and
legally invalid, and seeking reinstatement and back pay. The
trial court found the termination was justified, but the City
violated Bedard’s due process rights by giving her insufficient
time to respond to the allegations. The trial court awarded her
back pay.
Bedard appeals, arguing her termination was improper
because it (1) was entirely based on her failing to sign the Notice,
which was an illegal contract; (2) was too harsh a penalty under
the circumstances; and (3) violated Skelly. We affirm.
1 Skelly held, with respect to a permanent civil servant, that
due process requires the employee be given, prior to termination,
notice of the proposed action, the reasons therefor, a copy of the
charges and materials upon which the action is based, and the
right to respond to the authority initially imposing discipline.
(Skelly, supra, 15 Cal.3d at p. 215.)
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FACTUAL AND PROCEDURAL BACKGROUND
I. City Ordinance Mandating Vaccination or
Exemption
In March 2020, the City declared an emergency due to the
spread of COVID-19. In August 2021, the Los Angeles City
Council passed Ordinance 187134, which required that all City
employees be vaccinated against COVID-19 or request an
exemption by October 19, 2021 “[t]o protect the City’s workforce
and the public that it serves.” The ordinance stated City
employees must receive their first dose of a COVID-19 vaccine by
September 7, 2021, and the second dose by October 5, 2021.
Alternatively, an employee could request an exemption by
September 7, 2021. “Employees with medical
conditions/restrictions or sincerely held religious beliefs,
practices, or observances that prevent them from receiving a
COVID-19 vaccine shall qualify for COVID-19 vaccine exemption,
upon approval of documentation provided by the employee to the
appointing authority or designee.” An exempted employee was
subject to weekly testing during work hours at no cost.
The ordinance explained: “The City’s goal is to have a
vaccinated workforce. As such, employees will not have the
option to ‘opt out’ of getting vaccinated and become subject to
weekly testing. Only those with a medical or religious exemption
and who are required to regularly report to a work location are
eligible for weekly testing.” The ordinance contained an
“Urgency Clause,” declaring that the ordinance “is required for
the immediate protection of the public peace, health and safety.”
The City then engaged in negotiations with its labor
organizations, including Bedard’s Union, the Los Angeles Police
Protective League (LAPPL), about the consequences for non-
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compliance with the mandatory vaccination conditions of
employment. After negotiations failed, the City issued its “Last,
Best and Final Offer” (LBFO) on October 14, 2021. The LBFO
stated the City would issue a notice to its unvaccinated, non-
exempt employees, instructing each employee to be vaccinated or
found to be exempt from the vaccination requirement by
December 18, 2021. The LBFO stated that prior to full
vaccination, the employee would pay for the interim testing that
was to occur between October 20 and December 18, 2021, and
that testing would not occur during work time. If an employee
did not comply with this mandate, she would not be fulfilling a
condition of employment, and she would be subject to
“appropriate and immediate corrective action.” An employee
terminated for noncompliance with the COVID-19 vaccine
mandate could seek “reemployment” with the City, subject to the
COVID-19 vaccination requirements. Alternatively, an employee
could resign or retire, then after the vaccination order is lifted,
they would be eligible for rehire.
On October 26, 2021, the City Council adopted a resolution
implementing “consequences” for failing to comply with
Ordinance 187134. The resolution stated that an emergency
existed; the City and its labor organizations, including the
LAPPL, had reached a “stalemate” in negotiations. It explained
that because the COVID-19 pandemic had created a “catastrophic
public health emergency” and a “compelling need for . . .
unilateral action,” the terms and conditions of the LBFO were
effective immediately. The resolution also stated: “compulsory
immunization has long been recognized as the gold standard for
preventing the spread of contagious diseases” and “vaccination is
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the most effective way to prevent the spread of COVID-19 and to
limit COVID-19 hospitalizations and deaths.”
On October 28, 2021, the mayor issued a memorandum to
all City department heads regarding the LBFO. The
memorandum declared that COVID-19 had created “a
catastrophic public health emergency,” and the vaccination
mandate was “critical to protecting the health and safety of our
workforce and the Angelenos we serve.” The memorandum
directed all City departments to implement the LBFO and issue a
notice to every unvaccinated employee, wherein the employee
was to acknowledge the deadline for becoming vaccinated and the
testing requirements. Employees were required to sign the notice
within 24 to 48 hours. Employees who refused to sign the notice
were to “be placed off duty without pay,” and sworn employees
were to “be subject to applicable Board of Rights proceedings.”
II. Bedard’s Failure to Comply with the Vaccine
Mandate
Bedard never submitted documentation showing she had
been vaccinated or had applied for an exemption and would be
tested. On November 5, 2021, Bedard’s supervisor, Deputy Chief
(then-Commander) Donald Graham, gave Bedard a “Notice of
Mandatory COVID-19 Vaccination Policy Requirements.” The
Notice stated: “To protect the City’s workforce and the public it
serves, City of Los Angeles Ordinance 187134 (‘COVID-19
Vaccination Requirement For All Current and Future City
Employees’) was enacted on August 24, 2021, requiring all
employees be fully vaccinated for COVID-19 by October 20, 2021,
or request a medical or religious exemption, and report their
vaccination status by October 19, 2021. To maximize compliance
with the Ordinance, the City is affording a final opportunity for
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current City employees to become fully vaccinated by December
18, 2021, prior to appropriate corrective action being taken.” The
Notice requested Bedard to sign a statement certifying that she
would be fully vaccinated for COVID-19 by December 18, 2021,
and in the interim, she would undergo biweekly COVID-19
testing at her own cost and on her own time until December 18,
2021. It further stated, “I understand I must begin the
vaccination process as soon as possible so as to be fully
vaccinated no later than December 18, 2021, and I will report my
progress to the City after receiving my first and second
vaccination dose.” The Notice further required Bedard to certify:
“I understand that if I do not follow all of the terms and
conditions herein, including showing proof of being fully
vaccinated by December 18, 2021, I will immediately be placed off
duty without pay pending pre-separation due process procedures
(Skelly) and I will be served with a written notice of proposed
separation from City employment for failing to meet a condition
of employment.” Bedard would not sign the Notice and she
instead had Commander Graham write “refused” on the
signature line.
Two days later, on November 7, 2021, Bedard sent an email
to Commander Graham and others, stating that she would not be
vaccinated. Bedard explained that she was refusing the vaccine
because her daughter had an adverse reaction to it. Bedard did
not mention any religious or medical reason for a vaccination
exemption.
On November 10, 2021, the City served Bedard with a
“Complaint Adjudication Form” and “Notice of Proposed
Disciplinary Action” for failing to comply with the ordinance’s
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requirements. The notice of proposed discipline gave Bedard
until November 15, 2021 to respond orally or in writing.
On November 16, 2021, LAPD served Bedard with a
Complaint and Relief from Duty, alleging, “On or about
November 7, 2021, you, while on duty, failed to sign and/or
comply with the requirements of the Notice of Mandatory
COVID-19 Vaccination Policy Requirements, a condition of
employment.” She was “temporarily relie[ved] from duty”
effective November 17, 2021, pending a hearing before the Board
of Rights.
III. Board of Rights Hearing
At Bedard’s Board of Rights hearing, Bedard testified that
she had been a police officer since April 1998 and her last
assignment was in the Transit Services Bureau. On November 5,
2021, then-Commander Graham served her with the Notice of
Mandatory COVID-19 Vaccination Policy Requirements. Bedard
testified that she understood what the Department was asking of
her in the Notice. Bedard stated the testing was “the main issue”
for her. She did not understand why she was being charged for
the COVID testing. She told Graham to write “refused” on the
signature line because she objected to paying for the testing and
giving her personal information to Bluestone, the company the
City contracted with to perform testing. She understood that
becoming vaccinated, paying for testing, and providing her
information to Bluestone were conditions of employment.
Bedard testified that she emailed Graham and others,
indicating she would not get vaccinated because of the reaction
her daughter had to the vaccine. Bedard stated she did not apply
for a medical exemption since it was her daughter who had the
adverse reaction, not Bedard. Bedard testified that she also did
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not apply for a religious exemption because she would still have
to pay for the testing. After pointing out that the LAPD’s policies
were evolving regarding the frequency and type of testing,
Bedard stated “[t]here’s a lot of different things that are
happening that I can’t believe I’m in this position. I have no
problem complying and following the rules when they make sense
to me.” She testified that she did not sign the vaccination policy
because “what is the point of my signature on something that I
don’t really agree with.” Bedard understood that she could be
rehired by the Department if she were vaccinated.2 Bedard’s
counsel argued that the contract was illegal because Labor Code
section 28023 prevented the City from making her pay for testing.
On July 13, 2022, the Board of Rights unanimously found,
after giving “exhaustive consideration to all of the evidence and
the law,” that Bedard failed to comply with the ordinance. The
Board stated that Ordinance 187134, which had the “full force
2 Others also testified, including Deputy Chief Donald
Graham, the City analyst who tracks employee vaccination
statuses, the City investigator responsible for the investigation of
Bedard, and a detective supervisor for the Officer Representation
Section.
3 All undesignated statutory references are to the Labor
Code.
Section 2802, subdivision (a), states: “An employer shall
indemnify his or her employee for all necessary expenditures or
losses incurred by the employee in direct consequence of the
discharge of his or her duties, or of his or her obedience to the
directions of the employer, even though unlawful, unless the
employee, at the time of obeying the directions, believed them to
be unlawful.”
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and effect of the law,” required all City employees to obtain a
COVID-19 vaccine. Since Bedard did not apply for a vaccination
exemption and did not work remotely, Bedard was obliged to
become vaccinated or seek an exemption and regular testing,
which she did not do. The Board explained that her daughter’s
adverse reaction to the vaccine was not a valid medical reason for
an exemption. The Board also concluded Bedard’s refusal to sign
the Notice was a violation of a condition of her employment. The
Board rejected Bedard’s argument that section 2802 prevented
the City from making her pay for testing. The Board reasoned
that section 2802 was inapplicable as it applied to private
employers, not public entities.
The Board stated it had reviewed Bedard’s personnel file
and that she was a highly qualified and excellent employee. It
nonetheless found that Bedard’s willful refusal to comply with
the ordinance required the Board to uphold her termination.
Lastly, the Board concluded Bedard had not been given
sufficient time to respond to the charges, in violation of Skelly.
The Board awarded her back pay from the date of her discipline
(November 10, 2021) to the time the discipline was validated
(July 13, 2022).
The Chief of Police subsequently found that the Board did
not have jurisdiction to award Bedard back pay. On the Board’s
findings, the Chief of Police wrote he “will not comply” with the
back pay order.
IV. Bedard’s Petition for Writ of Mandate in the Trial
Court
In August 2022, Bedard filed a petition for writ of mandate,
seeking to “(1) set aside her termination and restore her position
with backpay; (2) set aside the Board of Rights’[s] finding of guilt;
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and (3) remove the record of this charge or penalty from her
record.” She also sought attorney fees and costs.
On April 18, 2023, in a detailed 13-page decision, the trial
court affirmed the LAPD’s decision to terminate Bedard, but
found she was entitled to back pay for the Skelly violation. The
court found: “[T]he Vaccination Notice had three conditions of
continued employment: (1) Bedard’s signature on the
Vaccination Notice; (2) her agreement to be fully vaccinated by
December 18, 2021; and (3) her agreement to testing with
Bluestone in the interim before December 18 with her
reimbursing the City’s testing expense through paycheck
deductions. The undisputed facts show that Bedard did not sign
the Vaccination Notice and did not become fully vaccinated by
December 18, 2021. There also is no evidence that she tested,
either through Bluestone or any other vendor.”
Without deciding the issue, the court assumed section 2802
barred the City from requiring its employees to pay for their own
COVID-19 testing.4 Given this assumption, the trial court found
that Bedard’s refusal to test in accordance with the City’s
4 The trial court later stated, “The City also is correct (Opp.
at 9–10) that the express language of section 2802 only creates a
duty for an employer to indemnify an employee for costs; it does
not require that costs be advanced or made available for free. See
Edwards [v. Arthur Andersen LLP (2008) 44 Cal.4th 937,] 952
(section 2802 codifies policy that favors indemnification of
employees for claims and liabilities from the employees’ acts
within the course and scope of their employment). Under the
plain language of section 2802, the City can mandate employees
to periodically test and then be required to indemnify their cost.
Bedard presents no evidence that she intended to or did incur
any testing costs before December 18, 2021.”
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requirements did not violate the conditions of her employment.
However, the court concluded Bedard still violated the two
remaining conditions of employment: refusing to be vaccinated
and refusing to sign the Notice. The trial court explained:
“Bedard’s refusal to agree to be vaccinated by December 18,
2021 violated her conditions of employment. She did not seek a
medical or religious exemption. Instead, on November 7, 2021,
Bedard emailed Graham that she had decided not to take the
vaccine. AR 712. She explained that her daughter suffered an
adverse reaction to the Pfizer vaccine, and she did not want to
take the same risk. AR 712. This email was a direct violation of
her conditions of employment. As the City argues (Opp. at 5),
Bedard opposed [the] vaccination policy to ‘make a stand’ based
upon her personal opinions and her actions were insubordinate.
“Bedard’s refusal to sign the Vaccination Notice also
violated her conditions of employment. Graham discussed the
contents of the Vaccination Notice with Bedard, and she
understood them. AR 351-52. She understood that taking the
vaccine, paying for testing, and putting her information into a
Bluestone account all were conditions of employment. AR 357.
Yet, she refused to sign. AR 352.
“Bedard testified that Bedard did not agree to that which
was asked in the Vaccination Notice, primarily the payment for
testing. AR 352. She was being asked to sign a document with
which she knew LAPPL had issues. AR 352. The testing was the
main issue for her, and she could not understand why she would
be charged $560 for testing if LAPD was offering free testing to
everyone else. AR 352-53, 359.
“Bedard also testified that she had Graham write ‘refused’
because she objected to paying for testing and submitting the
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tests to Bluestone, not signing the Vaccination Notice itself. AR
353-55. If the [N]otice said that she would not be charged for
testing or submit information into a third-party vendor, she
would have agreed to the Vaccination Notice. AR 354, 356.
“The court concludes that Bedard could not have meant
this last point in her testimony—that she would have signed the
Vaccination Notice if she were not charged for testing. Doing so
would mean that she would agree to be vaccinated by December
18, 2021, which is completely inconsistent with her rationale for
not being vaccinated, both in her email to Graham and her
testimony. Bedard could only have meant that she would not
dispute the Vaccination Notice’s testing requirement if she could
have free testing. But Bedard would not have signed the
Vaccination Notice even in that circumstance because she would
be agreeing to be vaccinated.
“As the City contends (Opp. at 6-7), Bedard made plain in
her testimony that her attitude toward the City’s policy was
about the vaccination, not testing costs. She testified that she
has, ‘no problem complying and following the rules when they
make sense to me,’ implying that she will not follow rules with
which she does not agree. AR 363. She emphasized that she
‘took a stance by the grace of God,’ and stated that ‘not to tout
that I am this saint, [but] what I am saying is that we can’t all
just go along to get along, sometimes we have to bring some
commonsense back in.’ AR 631. This testimony was all about
vaccination, not testing.
“Although she does not so argue, Bedard could contend that
the illegality of the testing requirement infected the rest of the
Vaccination Notice and permitted her to refuse to sign it.
However, the court believes that Bedard seized on [the] section
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2802 issue in her testimony before the Board of Rights as a
matter of convenience. Tellingly, she did not object to Graham on
November 5, 2021 that she did not want to pay for testing, and
her November 7, 2021 email to Graham says nothing about the
cost of testing. It makes no sense for Bedard to make a personal
choice that she did not want to be vaccinated and then rely on the
cost of testing as the reason she did not sign the Vaccination
Notice. The court concludes that Bedard’s testimony about the
cost of testing was a post hoc makeweight that was not her real
reason for refusing to sign the Vaccination Notice on November 5,
2021.” (Fns. omitted.)
The court then addressed Bedard’s contention that her
dismissal was an excessive and disproportionate penalty for her
failure to sign the Notice given her excellent employment record.
The court found: “Bedard mischaracterizes the reasons for her
discharge, which are that she refused to be vaccinated and
refused to sign the Notice of Vaccination, both of which were
conditions of employment. Because they were conditions of her
employment, any analysis of Bedard’s performance or
qualifications as an employee is irrelevant. She did not meet the
conditions and could not remain an employee. [¶] Additionally,
an analysis of the abuse of discretion issue weighs in favor of
discharge. The City promulgated the vaccination policy as a
means to deal with the COVID-19 pandemic. The harm to public
service by an employee who refuses to vaccinate is self-evident.
Her decision puts all other public employees, and the members of
the public who deal with them, at risk.” The court also explained,
“there is a likelihood that such conduct will recur in the event of
a renewed COVID pandemic, or another health pandemic where
Bedard does not agree with the City’s remedy. While the City’s
13
use of the same Vaccination Notice is unlikely, it is likely that the
City would require employee vaccination. Yet, there is no reason
to believe that Bedard would change her mind and be
vaccinated.”
The trial court also agreed with the Board that the City
violated Bedard’s Skelly rights by giving her only five days to
respond to the notice of proposed discipline, not the full 30 days
required by the Memorandum of Understanding between LAPD
and LAPPL. The trial court found Bedard was “entitled to
backpay from December 17, 2021, to July 20, 2022,” i.e. from the
date she was “taken off the payroll until due process [wa]s
satisfied through affirmance of discharge by administrative
appeal.”
The trial court entered judgment on May 11, 2023, and
Bedard timely appealed on May 17, 2023.
DISCUSSION
Bedard asserts we should reverse her termination because
it was entirely based on failing to sign the Notice, which was void
because it violated section 2802, and termination was too harsh a
penalty under the circumstances and thus she should be
reinstated. She also contends she is entitled to reinstatement,
not just back pay, for the Skelly violation. We address each issue
in turn.
I. Standard of Review
Administrative mandamus is available to obtain judicial
review of a public agency “decision made as the result of a
proceeding in which by law a hearing is required to be given,
evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal,
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corporation, board, or officer.” (Code Civ. Proc., § 1094.5,
subd. (a).) In a proceeding for administrative mandate, the
judicial inquiry extends to whether the public agency “has
proceeded without, or in excess of, jurisdiction; whether there
was a fair trial; and whether there was any prejudicial abuse of
discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of
discretion is established if the public agency “has not proceeded
in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by
the evidence.” (Ibid.) “ ‘[R]arely, if ever, will a board
determination be disturbed unless the petitioner is able to show a
jurisdictional excess, a serious error of law, or an abuse of
discretion on the facts.’ ” (Fukuda v. City of Angels (1999) 20
Cal.4th 805, 814 (Fukuda); Mason v. Office of Admin. Hearings
(2001) 89 Cal.App.4th 1119, 1130–1131.)
The trial court reviews the administrative decision de novo
but affords the administrative findings “a strong presumption of
correctness.” (Fukuda, supra, 20 Cal.4th at p. 817.) “[T]he party
challenging the administrative decision bears the burden of
convincing the court that the administrative findings are
contrary to the weight of the evidence.” (Ibid.)
“ ‘ “When an appeal is taken from the trial court’s
determination, it is given the same effect as any other judgment
after trial rendered by the court: the only question is whether
the trial court’s (not the administrative agency’s) findings are
supported by substantial evidence. [Citation.] Conflicts in the
evidence must be resolved in favor of the judgment and where
two or more inferences can be reasonably drawn from the facts,
the reviewing court must accept the inferences deduced by the
trial court.” [Citation.][’] . . . [¶] ‘ “Evidence is substantial if any
15
reasonable trier of fact could have considered it reasonable,
credible and of solid value.” [Citation.] Additionally, a reviewing
court “may look to the findings in [the administrative agency’s]
decision for guidance in determining whether the trial court’s
judgment is supported by substantial evidence.” [Citation.]’ ”
(Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786,
796; Fukuda, supra, 20 Cal.4th at p. 824.) “However, we are not
bound by any legal interpretations made by the administrative
agency or the trial court; rather, we make an independent review
of any questions of law.” (Rand v. Board of Psychology (2012) 206
Cal.App.4th 565, 575 (Rand).)
We also “review de novo whether the agency’s imposition of
a particular penalty on the petitioner constituted an abuse of
discretion by the agency. [Citations.] But we will not disturb the
agency’s choice of penalty absent ‘ “an arbitrary, capricious or
patently abusive exercise of discretion” ’ by the administrative
agency.” (Cassidy v. California Bd. of Accountancy (2013)
220 Cal.App.4th 620, 627–628 (Cassidy).)
II. Substantial Evidence Supports the Trial Court’s
Conclusion that Bedard’s Termination Was Based on
Her Refusal to Become Vaccinated, Not Just Her
Refusal to Sign the Notice
Bedard contends she was terminated solely for her failure
to sign the Notice, which she urges violated section 2802 because
it required her to pay for the interim COVID-19 testing that was
to occur between November 7 and December 18, 2021.5 She
5 At oral argument before this court, Bedard’s counsel argued
that violating the ordinance was not sufficient to show Bedard
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contends this clause of the Notice rendered the entire agreement
void, citing section 2804.6 She therefore argues her termination
was unlawful. We disagree.
First, we conclude that Bedard forfeited her argument that
she was not terminated for violating the ordinance and that she
instead was solely terminated for her failure to sign the Notice
because she did not make this argument in the Board
proceedings or before the trial court. (Rand, supra, 206
Cal.App.4th at p. 587 [contention not raised at the administrative
hearing or in the trial court is forfeited]; Doe v. University of
Southern California (2018) 28 Cal.App.5th 26, 41 [argument not
presented to trial court during administrative appeal is
forfeited].) Notably, at the Board hearing, the City argued in its
closing argument that the ordinance required Bedard and all City
employees to vaccinate or file an exemption, and that her failure
to do either was a violation of her conditions of employment. The
City argued: “this hearing comes down to one thing and only one
thing. It is black and white. The City of Los Angeles lawfully
passed a legal ordinance requiring all City employees to become
vaccinated against COVID-19 or request an exemption and follow
violated a condition of her employment because the complaint
against Bedard did not reference the ordinance. Counsel
asserted “the ordinance is a side issue . . . and the City mushed
the two [issues of the Notice and the ordinance] together.”
6 Section 2804 states: “Any contract or agreement, express
or implied, made by any employee to waive the benefits of this
article or any part thereof, is null and void, and this article shall
not deprive any employee or his personal representative of any
right or remedy to which he is entitled under the laws of this
State.”
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the testing procedures. These are conditions of employment for a
City employee to keep their job. Sergeant Bedard did neither of
these.” Bedard’s counsel did not counter the City’s argument
that compliance with the ordinance was a condition of Bedard’s
employment or that her noncompliance with it was a cause of her
termination. Instead, Bedard’s counsel argued that the Notice
was illegal and that her due process was violated.7 The trial
court likewise stated that one “issue with respect to termination
is . . . whether then Sergeant Bedard refused to be vaccinated
pursuant to the City’s ordinance.” The trial court subsequently
found Bedard’s failure to vaccinate defied the ordinance and thus
was cause for termination. At this juncture too, Bedard’s counsel
failed to argue that her noncompliance with the ordinance was
not a basis for her termination.
Second, substantial evidence supports the trial court’s
finding that Bedard was not terminated just for failing to sign
the Notice but also because she refused to comply with the
vaccine mandate set forth in the ordinance. The complaint
charged Bedard with failing to “sign and/or comply with the
requirements of the Notice of Mandatory COVID-19 Vaccination
7 We also observe that during the administrative hearing,
the City’s counsel asked Bedard: “At the time, did you
understand that refusing to sign this document was a condition of
employment?” In response, Bedard testified: “So what I
understood is, refusing to agree to paying for the testing, to
putting my information into the Bluestone account, to actually
not receiving the vaccine, was a condition of employment, he
explained that to me. Not the actual physical signing, which I
think we are splitting hairs but.” Based on Bedard’s testimony, it
appears signing the Notice was beside the point.
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Policy Requirements.” (Italics added.) The Notice itself expressly
stated its purpose was to give non-compliant employees one last
opportunity to comply with Ordinance 187134 by becoming
vaccinated by December 18, 2021. The Notice described the
condition of employment at issue as: “the condition of
employment to be fully vaccinated.”
Bedard did not apply for a religious or medical exemption
and she expressly told her commanding officer in an email that
she would not be vaccinated for personal reasons. This refusal
alone clearly violated the ordinance’s vaccination requirement
and the Notice’s requirements enforcing the ordinance. To the
extent Bedard asserts that her termination was solely based on
her refusal to sign the Notice because she “was relieved of duty
and facing termination just days after refusing to sign the
Notice,” she ignores that this disciplinary action also occurred
just days after she sent her commanding officer and other
superiors the email stating that she would not be vaccinated.
Substantial evidence further supports the trial court’s
conclusion that Bedard’s “testimony about the cost of testing was
a post hoc makeweight that was not her real reason for refusing
to sign the Vaccination Notice.” As the trial court explained,
Bedard would not have signed the Notice even if testing were free
because “[d]oing so would mean that she would agree to be
vaccinated by December 18, 2021, which is completely
inconsistent with her rationale for not being vaccinated, both in
her email to Graham and her testimony.” Bedard’s email to her
superiors and her testimony illustrated that her decision not to
sign was really about vaccination, not the cost of testing.
In the email, which did not mention anything about the
cost of testing, she wrote: “I had a lengthy conversation with my
19
family and based on the fact my daughter suffered an adverse
reaction from the Pfizer vaccine, I could not voluntarily take this
vaccine. . . . [¶] I believe in my heart this is the right decision, as
you believe in your heart you are doing the right thing by
following orders and serving officers with these documents.”
She testified that she has “no problem complying and
following the rules when they make sense to” her. She described
her decision not to vaccinate as taking “a stance by the grace of
God” because she was “given the opportunity to be able to stand
strong in what [she] believe[s].” She explained, “we can’t all just
go along to get along, sometimes we have to bring some
commonsense back in.”
On appeal, Bedard conspicuously avoids addressing the
substantial evidence that she violated the vaccination condition
of her employment. We note that Bedard’s brief also does not
discuss the substantial evidence standard of review.8 Although a
statement of the standard of review is not a technical
requirement of an appellate brief, “[f]ailure to acknowledge the
proper scope of review is a concession of a lack of merit.” (Sonic
Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196
Cal.App.4th 456, 465.) This is because “ ‘[a]rguments should be
tailored according to the applicable standard of appellate
review.’ ” (Ibid.)
Here, the crucial question that Bedard avoids addressing is
whether there was substantial evidence to support the trial
court’s conclusion that Bedard violated her employment
conditions. As explained above, ample evidence supported the
8 Bedard solely mentions that we review de novo the penalty
imposed.
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trial court’s conclusion that she violated the vaccination
condition. We need not decide whether the condition requiring
her to pay for the interim testing violated section 2802,9 or that
signing the Notice was not a valid condition of employment,
because (1) Bedard never intended to become vaccinated and thus
no interim testing was necessary, and (2) there is substantial
evidence that Bedard violated the ordinance’s vaccination
mandate. Her refusal to vaccinate without an exemption,
standing alone, supported the City’s disciplinary action.
III. The Board Did Not Abuse Its Discretion by
Terminating Bedard for Failing to Comply with the
Vaccination Policy
Bedard asserts that termination of her employment was too
harsh a penalty under the circumstances and that she “is entitled
to a remand to the trial court for an award of reinstatement to
her position with back pay and benefits.”10
9 Without deciding the issue, the trial court assumed section
2802 barred the City from requiring its employees to pay for their
own COVID-19 testing. Therefore, the trial court found that
Bedard’s refusal to test with Bluestone did not constitute a
violation of an employment condition. However, the trial court
also stated later in its decision that because the express language
of 2802 only creates a duty for an employer to indemnify the
employee for costs, “the City can mandate employees to
periodically test and then be required to indemnify their cost.”
10 Bedard is correct that we review de novo the trial court’s
assessment of the penalty. However, as mentioned above, we
review whether the Board’s “imposition of a particular penalty on
the petitioner constituted an abuse of discretion by the [Board].”
(Cassidy, supra, 220 Cal.App.4th at p. 627.)
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“A review of disciplinary action involves consideration of
‘ “the extent to which the employee’s conduct resulted in, or if
repeated is likely to result in, ‘[h]arm to the public service’ . . . ,
the circumstances surrounding the misconduct and the likelihood
of its recurrence.” ’ ” (Noguchi v. Civil Service Com. (1986)
187 Cal.App.3d 1521, 1545.) “Of these three factors, harm to the
public service is the ‘overriding consideration.’ ” (Ibid.)
Here, the Board acknowledged that the ordinance stated
the vaccination and reporting requirements were conditions of
employment and “ ‘a minimum requirement for all employees.’ ”
The Board noted that despite Bedard’s awareness of this, she
neither became vaccinated nor filed for an exemption. As either
vaccination or an exemption was a minimum requirement for
Bedard’s employment, the Board found her termination was the
appropriate penalty.
We conclude the Board did not abuse its discretion in
finding that termination was the appropriate remedy. The
vaccination requirement’s objective was to “[t]o protect the City’s
workforce and the public that it serves” from a dangerous illness
during a global pandemic. The City’s resolution observed that
“compulsory immunization has long been recognized as the gold
standard for preventing the spread of contagious diseases” and
“vaccination is the most effective way to prevent the spread of
COVID-19 and to limit COVID-19 hospitalizations and deaths.”
At the Board hearing, a senior personnel analyst for the LAPD
testified that the ordinance was implemented to make “the
workplace and the City safer.” Bedard’s refusal to vaccinate
placed Bedard, her coworkers, and the public with whom she
interacted while on duty at a significant risk of harm. Bedard
offers no argument otherwise in her briefs on appeal. Since
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Bedard expressed in the email her intention to not become
vaccinated, the Board could reasonably infer that at the point in
time it was making its decision, the public harm would be
recurring.11
Bedard cites Skelly, supra, 15 Cal.3d 194, for the principle
that the severity of the disciplinary action must reflect the
severity of the misconduct. Yet, Bedard does not explain how her
conduct was not severe and does not cite a case illustrating that
the refusal to vaccinate against a deadly disease warrants lesser
discipline than termination. (See Estate of Cairns (2010) 188
Cal.App.4th 937, 949 [failure to provide argument or authority
forfeits contention].) She does not describe how harm from her
refusal to vaccinate could be eliminated or mitigated.
As explained above, the Board did not abuse its discretion
in concluding that termination was appropriate given that
11 At oral argument, Bedard’s counsel argued that statements
made by the police chief during a podcast from November 2022
that both vaccinated and unvaccinated people can contract and
transmit the virus, and the City’s June 2024 amendment to the
Administrative Code ending the vaccination requirement, show
that no public harm would come from Bedard’s refusal to
vaccinate. Yet, as the trial court pointed out, the podcast
discussed after-the-fact events that had no bearing on the Board’s
July 2022 decision. The same is true for the recent amendment
ending the vaccination requirement—it has no bearing on the
Board’s decision. We also conclude that because Bedard’s
opening brief and reply brief failed to brief this issue, it is
forfeited on appeal. (United Grand Corp. v. Malibu Hillbillies,
LLC (2019) 36 Cal.App.5th 142, 146, 153 [brief must contain
reasoned argument and legal authority or the court may treat
contention as forfeited]; Cal. Rules of Court, rule 8.204(a)(1)(B).)
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Bedard’s refusal to become vaccinated placed the public and her
coworkers at risk of harm on a daily basis.
IV. The Skelly Violation Did Not Require Reinstatement
As mentioned above, the trial court agreed with the Board
that the City violated Bedard’s Skelly rights by failing to afford
her the full 30 days to respond to the charges against her. The
court awarded her back pay to remedy the due process violation.
Bedard argues, as her counsel did below, that back pay was an
insufficient remedy for the Skelly violation. She asserts that had
she been given the full 30 days to respond to the charge against
her, there was a reasonable probability she would have avoided
being terminated and that she is entitled to reinstatement,
rather than just back pay, for the Skelly violation.
In Barber v. State Personnel Bd. (1976) 18 Cal.3d 395(Barber), the Supreme Court held that the appropriate remedy
when a permanent civil service employee is denied a Skelly
hearing prior to termination “is to award back pay for the period
of wrongful discipline.” (Id. at p. 402.) The court explained:
“The constitutional infirmity of the disciplinary procedures used
in the present case was the imposition of discipline prior to
affording the employee notice of the reasons for the punitive
action and an opportunity to respond. [Citation.] This infirmity
is not corrected until the employee has been given an opportunity
to present his arguments to the authority initially imposing
discipline. [Citation.] Under the procedures applied to [the]
plaintiff, the constitutional vice existed until the time the board
rendered its decision. Prior to that time, the discipline imposed
was invalid.” (Id. at p. 403.) The Supreme Court went on to
conclude that the employee’s termination was not wrongful (id. at
p. 404), but the employee was entitled to back pay from the time
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of his dismissal to the date the State Personnel Board’s decision
was filed based on the Skelly violation (id. at p. 405).
Recently, an appellate court noted that, “Barber makes
clear that whether the employer had a legitimate basis to
terminate the employee’s employment and whether the employee
is entitled to reinstatement are questions entirely distinct from
whether the employee is entitled to backpay for the period during
which the discipline was invalid. Barber establishes without
caveat that the employee is entitled to ‘back pay for the period of
wrongful discipline’ (Barber v. State Personnel Board, supra, 18
Cal.3d at p. 402); what makes the discipline ‘wrongful’ has
nothing to do with whether the employer had a legitimate basis
for terminating the employment. The discipline was wrongful
solely because it was imposed in violation of the employee’s right
to due process.” (Economy v. Sutter East Bay Hospitals (2019) 31
Cal.App.5th 1147, 1162.)
Bedard asserts there was a reasonable probability she
would have been able to avoid termination had she had the full
30 days to respond to the charges. In light of Bedard’s testimony
indicating that she would not vaccinate and did not fall under a
religious or medical exemption, she offers no credible explanation
of how termination could have been avoided. Moreover, she fails
to cite any law to support her contention that reinstatement is an
available remedy for the due process violation. (See Kaufman v.
Goldman (2011) 195 Cal.App.4th 734, 743 [“Every argument
presented by an appellant must be supported by both coherent
argument and pertinent legal authority. [Citation.] If either is
not provided, the appellate court may treat the issue as
waived.”].) Since Barber established that the only remedy for the
25
violation of an employee’s due process is back pay when her
discharge is justified, we affirm on this ground as well.
DISPOSITION
The judgment is affirmed. Respondent City of Los Angeles
is awarded its costs on appeal.
CERTIFIED FOR PUBLICATION
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.
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